CLAIMS, SELF-DETERMINATION, ENVIRONMENTAL ISSUES
& INDIGENOUS RIGHTS
"Farewell unhappy land for my heart bleeds in pity. Little
does it signify to us who are the conquered
or who are victorious, you are devoted to ruin to whoever succeeds."
(Janet Shaw, from the History of Canada videos.)
INTRODUCTION: SOME ARE MORE EQUAL THAN OTHERS
Over time, various agreements and pieces of legislation have changed the face of North American Native-Body Politic relations. Whether or not it has improved the position of Indigenous people within the overall twenty-first century Canadian political, economic and social landscape will probably be debated until the next century. It is a fact, however, that as long Indigenous negotiations continue to be hit and miss, there never will be a cohesive understanding of how we are faring. Aboriginal Title continues to be hotly debated with government pundits reluctant to cede to tribal communities land bases, forestry, gas and mineral rights because they are on traditional lands. Therefore, agreements have tended to lean towards "splitting the difference" by negotiating limited partnerships and profit-sharing that almost always benefits the ruling government, be it federal or provincial.
"It is commonly thought that the watershed Supreme Court of Canada cases on Aboriginal rights represent a gradual trend wherein Aboriginal peoples have gained increasing protection under Canadian common law....Despite judicial decisions dealing with Aboriginal rights under section 35(1), the rights of Aboriginal peoples in Canada have not gained greater protection and they certainly have not expanded to encompass the right of self-determination." (Dalton, Jennifer E. Aboriginal Self-Determination in Canada: Protections Afforded by the Judiciary and Government. Canadian Journal of Law and Society - Volume 21, Number 1, 2006, pp. 11-37. University of Toronto Press )
Not all traditional lands are rich in natural resources, therefore, those that are less profitable tend to be on the margins of the negotiating table. Poverty continues to exist in staggering numbers, violence toward women and children is still five times the national average and urban Native populations aren't even considered part of the mix.
"On the whole, the Government of Canada has been willing to recognise the inherent right of self-determination as applied to Aboriginal peoples. This is due to the changing legal status of who constitutes "peoples" under international law and the role of the Canadian government as a signatory to various relevant international covenants and declarations, alongside more recent government policy statements and developments in comprehensive land claims and self-government negotiations. Ultimately, it is argued that the Canadian government has tended toward higher levels of support for more extensive rights for Aboriginal peoples than has the judiciary, and most notably, the Supreme Court of Canada." (Ibid.)
"In the past ten years Canada has enacted a series of legislation in relation
to First Nations including among others:
· First Nations Land Management Act, S.C. 1999
· c.24, First Nations Goods and Services Tax Act, 2003, S.C. 2003, c. 15, First Nations.
· Fiscal and Statistical Management Act, S.C. 2005, c.9, First Nations Oil and Gas.
· Moneys Management Act, S.C. 2005, c.48. and the First Nations Commercia.
· Industrial Development Act, S.C. 2005, c.53.
This legislation is in the form of enabling
legislation: it permits First Nations upon entering into a variety of
agreements with the governments to assume some degree of control over
their lands, resources, moneys and development. Participation in this
enabling legislation is voluntary."
(Annotated bibliography: Aboriginal Self Determination: Are We There Yet? David K. Laidlaw, December 4, 2009
Has any of it advanced the cause of equal
justice and self-determination for Indigenous people? Again, some will
say yes, others, no. When original understandings were based on
lies and out-right theft, it is difficult for many Native people to
believe that their best interests are paramount. Let's face it,
the promise of reserve lands in a number of cases was not fulfilled for
the simple reason that the land was coveted for a variety of reasons by
the ruling government. Often , other territory, not in good locations
was provided unilaterally and with no compensation. Even this land
could be appropriated by the government or any other agency with
such powers if they so desired. For example, railroad companies
expropriated tribal lands freely, without compensation or consultation.
Some territories were often split in half so that the lines could be
pushed through. In other words, any treaties that were in place at the
time, were ruthlessly ignored in favour of European settlement.
The injustice was staggering, to say the least. Two recent historical
periods change that prevailing attitude.
It was not until section 35 of the 1982 Constitution Act, that suddenly government's went "Oops, perhaps there is some injustice." Is this not closing the station door after the train has left? The increasingly complex tapestry of Canadian Indigenous law renders the understanding of Indigenous/Government relations confusing and unsatisfying. There is no unifying common theme, as it is deliberate strategy to divide and negotiate rather than enact a cohesive Indigenous policy that covers social, economic and political positions for Native people in an equal way. To do this, places tribal communities in a powerful position to change the face of Canadian politics.
Determination or decision-making according to one's own mind or will, without outside influence but within the body politic of the Nation State. The right of Native people to decide upon their own political status, agenda and form of government without outside influence. This includes a wide variety of Internal Rights.
SOVEREIGNTY Supreme and independent political authority. This includes External Rights.
RIGHTS FOR RESERVES, OR RIGHTS TO INDIGENOUS TITLE, THAT IS THE QUESTION
Problems in providing a solid economic base plague most self-government plans; Many Native groups reject the idea that their self-government jurisdiction would extend only to their reserve (crown) lands. They prefer to tie their political renewal aspirations to self-government issues that address aboriginal title, resource allocation in their traditional territories, which does not necessarily mean a reserve.
In other words, is it self-government for Indian Nations or self-government for Indian reserves? Some Native groups wish to remain under the Indian Act seeking only greater control over their own affairs. It is a complicated issues. Read on...........
Gordon Peters, the Executive Director of the Centre for Indigenous Sovereignty, says that sovereignty is critical to the survival of the coming generations of Aboriginal children throughout Canada.
"Governments in the Americas have demonstrated that they do not have the solutions required for Indigenous peoples to reinvigorate their communities so that children grow up in healthy environments." Peters says that, contrary to stereotypes, Aboriginal peoples lived in stable, loving and healthy communities for centuries throughout the Americas. "Governments in North and South America should understand that it is in their best interest to allow Aboriginal peoples to restore political and economic self-reliance to their societies."
More Information on the Centre for Indigenous Sovereignty http://www.cfis.ca/
WHAT CHARACTERIZES A DISTINT CULTURE
Sounds like any other country! These attributes are what it is to be First Nations as well.
NOTE 1: The Charter of Rights and Freedom contained in the 1982 Constitution Act created a new level of appeal for Native People in terms of violations of Aboriginal rights, the Supreme Court. Prior to 1982, appeals could be made only to the House of Commons, the very body who set the sanctions in the first place!
NOTE 2: Many Native groups reject the idea that self-government jurisdiction extend only to their reserve lands, thereby tying self-determination aspirations to settlement of land claims over their current territories. In other words, is it self-government for Indian Nations or self-government for Indian reserves?
NOTE 3: Some Native groups wish to remain under the Indian Act seeking only greater control over their own affairs.
NOTE 4: A Court case to watch: On March 6, 2002, the Haida of British Columbia launched a lawsuit with the B.C. Supreme Court for hereditary title/ownership of the Queen Charlotte Islands. The suit if the first of its kind because it includes surrounding waters and offshore rights (oil and gas reserves). It will be the first Indigenous title lawsuit since the 1997 landmark Supreme Court of Canada decision in Delgamuukw vs the Queen. In this case the Supreme Court broadened the definition of Aboriginal Rights by giving greater weight to oral histories previously dismissed by lower courts. It also extended the principle of indigenous title to include ownership of land.
Note 4: The Indian Act is amended (1927) to prohibit Native people from using Band funds to launch land claims actions.
Note 5: The Federal Government calculates the cost of satisfying all Indigenous land claims at $200-billion dollars.
WHEN THINGS STARTED TO CHANGE FOR NATIVE PEOPLE
In 1973, the terms, "Land Claims" and "Aboriginal Rights" first appeared in a landmark Supreme Court ruling. British Columbia's Calder Case (named after Nishga’a Leader, Frank Calder) asked the Supreme Court to review the existence of "Aboriginal title" over lands historically occupied by the Nishga’a. In a split decision, the Supreme Court acknowledged the existence of some inalienable Aboriginal rights (meaning, something that may not be taken away or transferred) although they did not agree that title continued to exist in British Columbia. Their decision was based on two points:
The Government of Canada, had up to this time completely rejected any suggestion that Native people had any rights at all. This forced the government and all subsequent governments back to the negotiating table.
Since 1973, Aboriginal rights have expanded to include a broad range of economic, social, cultural and political claims. At the root of these expanded claims lies the demand for legal recognition as, at best, sovereign nations, at worst Aboriginal title, which includes the inherent right to self-government because of historic occupation of North America. Therefore, a separate land base within a separate political jurisdiction is fundamental to Native self-government - in other words, a third level of government at the federal level.
SELF-GOVERNMENT ALSO INCLUDES:
RULINGS ON THE VALIDITY OF THE INDIGENOUS
Unable to trust the time honoured tradition of the Oral Narrative, that is the cultural, historical and spiritual grounding of First Nations, Courts have traditionally relied on the European method of decision-making:
Three recent rulings have changed this view somewhat:
1997 - In the Delgamuukw suit (British Columbia), the Supreme Court orders a new trial. Treaty negotiations are thrown into turmoil because the Court broadens the definition of Aboriginal Rights by giving greater weight to oral histories previously dismissed by lower courts. It also extends the principle of indigenous title to include ownership of land.
1999 - Canada’s Supreme Court ruled that the oral tradition of Indigenous fishing rights should be acknowledged. If there were any doubts, the decision should be in favour of Indigenous people.
March 7, 2002 - Approximately 15,000 Cree and Dene people from Alberta became the first Natives in Canada to secure absolute ("any time, any reason") tax-free status in a landmark Federal Court ruling that strengthens treaty promises of long ago. Mr. Justice Douglas Campbell declared that oral promises were equal to treaty terms. The decision was based on ancestral oral understanding of Crown promises in the signing of Treaty 8, in 1899. This decision builds on the Supreme Court ruling of 1999 regarding fishing rights and the value of oral tradition. Justice Campbell’s decision will be appealed.
MINI RECENT TIME LINE
QUOTE: "In 1868, men came out and brought papers. We could not read them and they did not tell us truly what was in them. We thought the treaty was to remove the forts and for us to cease from fighting. But they wanted to send us traders on the Missouri, but we wanted traders where we were. When I reached Washington, the Great Father explained to me that the interpreters had deceived me. All I want is right and just."
Lakota, 1822 - 1909
The James Bay And Northern Quebec Agreement was a land claim settlement, approved in 1975 by the Cree and Inuit of northern Quebec, and later slightly modified in 1978 by the Northeastern Quebec Agreement, through which Quebec's Naskapi First Nations joined the treaty. The agreement covered economic development and property issues in northern Quebec, as well as establishing a number of cultural, social and governmental institutions for Native people who are members of the communities involved in the treaties. Therefore, by virtue of the Agreement, these people occupy the position of a distinct People, that is, communities with a distinct culture, society, traditional land, history, attachment to that land, political position, aspects of external recognition, traditional law and culture set against that of the overall society in Quebec and Canada.
Of course, all North America's Native people can be considered distinct in terms of culture, society, attachment to traditional land, and history, The differences are whether or not such cultures are recognized by the North American body politic. Even with recognition, it is still very much on a limited basis.
Native Self-Government in Canada (Penner Report). This all-party committee made several far-reaching recommendations. Particularly important was the call for the federal government to establish a new relationship with First Nations; that an essential element of this relationship be recognition of Indian self-government, and that the right to self-government be entrenched in the Canadian Constitution.
The committee dismissed the Indian Act as ‘antiquated’ and "completely unacceptable as a blueprint for the future." It further recommended phasing out Indian Affairs replacing it with federal grants and settlement of Native land claims to provide the required economic base. First Nations governments would have control over all Indian lands and resources and would have jurisdiction over many matters affecting their members (education, social services). They would become a distinct third order of government within Canada. The Inuit would eventually achieve self-government on a similar basis.
|1984||First Ministers Conference - Trudeau "we are not here to consider whether there should be institutions of self-government, but how these institutions should be brought into being."|
|1984||Cree-Naskapi (of Quebec) Act is essentially the achievement of self-government.|
|1985 - 1887||Prime Minister Mulroney attempted to make the proposals regarding Native sovereignty acceptable to the provincial premiers. Both times, talks collapsed in rancor and squabbling among the federal government, the provinces and leaders of the four major Native organizations. The federal proposal for full recognition of the Native right to self-government, without full definition of terms and costs, was unacceptable to B.C., ALTA, SASK, NFLD.|
|Interesting Notes||Native Self-government can be pursued without a constitutional accord, through bilateral agreements between Natives and the federal government. (I.e. Nisg'a agreement). NOTE: The term 'treaty' is no longer used; 'Agreement' is now the accepted term.|
|1986||The Sechelt Indian Band Self-Government Act allowed for the Sechelt of British Columbia to receive title to their reserve lands, the right to draft their own constitution and laws; they are no longer bound by the Indian Act.|
|1990 - May 31||Sparrow Decision. The Supreme Court of Canada issues a landmark ruling which states that Aboriginal rights cannot be extinguished. It re-defines Indigenous peoples’ right to fish for food ; social and ceremonial purposes. The ruling takes priority over all other uses of the fishery by other individuals, subject to certain overriding considerations such as conservation of the resource. It concludes that provincial legislation cannot limit Native ancestral rights even where the public interest is involved. The Supreme Court also sets out the necessity of consulting with Aboriginal groups when their fishing rights are affected.|
Canada adopts a negotiated approach to Indigenous self-government which
results in new arrangements to give Native communities the legitimate
tools they need to exercise greater control over their lives.
"Self-government arrangements will recognize Aboriginal people's right to make decisions about matters internal to their communities, integral to their unique cultures, traditions and languages, and connected with their relationship to the land and resources...government structure, land management, health care, child welfare, education, housing and economic development. Negotiations will be between Aboriginal groups, the federal government and, in areas affecting its jurisdiction and interests, the relevant provincial or territorial government."
|1996||As a result of the OKA crisis. The Royal Commission Report on Aboriginal People is released. It is welcomed by the Moderator and the General Council Executive as a message of reconciliation between Aboriginal and non-Aboriginal peoples in Canada. Part of the breakdown in this relationship, is described in the RCAP report as the cultural superiority and policy of assimilation that finds expression in the Indian Residential Schools. There is a significant section to do with Indigenous Self-Determination which to this day has been ignored by Ottawa.|
|1999 - April 1||Nunavut (means "our land" in Inuit) becomes Canada’s newest territory in the eastern Arctic. There are two different Acts: the Nunavut Act and the Nunavut Land Claims Agreement Act. The Nunavut Act is for the establishment of a territory and the provision of a government. The Nunavut Land Claims Agreement Act means the land claims agreement between the Inuit and Canada. Iqaluit (formerly known as Frobisher Bay) becomes its capital. (See Greenland Home Rule below)|
|1999 - October||The Mi’Kmaq and the people of Esgenoopetitj attempt to exercise their Treaty Rights by fishing for lobster. Non-Native fishermen respond by cutting lines and destroying $210,000 worth of traps belonging to the people of Esgenoopetitj. The DFO and RCMP take no action to prevent destruction of property or violence directed towards the Mi’Kmaq people. The situation is tense, with non-Native fishermen ramming boats and threatening with firearms. Two Mi’kmaq men are seriously injured. Two years of negotiations with Federal Fisheries commences. Despite a Supreme Court decision affirming their Treaty Rights to make a moderate living from fishing, they are threatened by constant Department of Fisheries and Oceans (DFO) interference and harassment in their fishery.|
|2000||The Nisga'a Agreement is a much more far-reaching version of the Sechelt Agreement.|
The Greenland Home Rule Act represents a pioneering effort to accommodate Aboriginal aspirations for self-determination. Since 1380, the Inuit of Greenland have been under Danish rule, and formally Greenland was a colony until 1953. Since 1979, however, Greenland has operated under the Home Rule Act which grants its 55,000 residents a fair degree of autonomy from Copenhagen over its internal affairs. It does so, however, without granting Inuit residents any greater or lesser political rights over non-Inuit residents. Public monies for self-government are not transferred on racial lines; fiscal transfers from Copenhagen go to the Greenlandic government, which serves Inuit and non-Inuit Greenlanders alike. Home Rule, therefore, is a form of public self-government, not Aboriginal self-government. However, because Inuit residents make up 80% of the population, they are in no danger of being outvoted by non-Native residents. In this regard, the territory of Nunavut is similar to the Home Rule public self-government model.
AN INFORMED OPINION
"Historical perspective cannot be ignored when trying to find a place for Indigenous renewal in Canada. Grievances of the magnitude suffered by Native people colour every nuance of the negotiating process. In the past, Native people have not been given cause to believe that the State really wants and intends to negotiate in good faith. It would be obscene to expect any group of people who have been choked by the mantle of socio/political apartheid to cast aside hundreds of years of grievances and oppression and think they will achieve equitable settlements. Such pretense favours only the State and makes it non-accountable for part of its own history. In others words, trust between parties is a major factor in successful negotiations and trust is not something that historically has been in evidence.
embodies a world view which is often taken for granted, and frames a
debate. Thus the wording of the expression
assumes in some way its justice. "Property rights"
are one way
a society organizes its affairs; they reflect the distribution of power
and influence - the class structure - within a society. Insofar as they
have been applied to Nature, such rights have presumed that one species
- humans - has the right to decide whether or not other animal species,
plant species, and the physical environment itself, have the
"right" to live or die. Clearly, to Indigenous people this is not an acceptable
view for a deeper environmentalism. Humans cannot and do not
Earth. We make use of it, wisely or foolishly"
To this day, most intelligent people know that the founding of Turtle Island was based on the theft of the land from the First Nations People and their Ancestors. The awful irony, is that 'theft' being one of the ten commandments did not seem to bother the Christian imperialist forces in their lust to conquer Turtle Island. In most countries theft is an indite-able offense but not, it seems, when it came to separating the First Citizens from their ancestral homes. Afterall, we did sit down to parlay in good faith, never believing for a minute that the other side had a different agenda already planned out.
"This war did not spring up
on our land, this war was brought upon us by the children of the Great
Father who came to take our land without a price, and who, in our
land, do a great many evil things... This war has come from robbery -
from the stealing of our land."
Brule/Sicangu, 1823 -1881
THE ROYAL PROCLAMATION OF 1763 - Click Fire
With minor differences, all federal treaties were similar. Indians agreed to "cede, release, surrender and yield up" their rights to the land in exchange for reserves, small cash payments, ammunition and fishing twine, uniforms and medals for the chiefs, annual payments to each band member and promises of continued hunting and fishing rights. In other words, Indians received very little for their surrender of nearly half of Canada’s land surface.
What is more, it appears that there were great differences between what the Indians were told they were signing and the actual written words of the treaties. For example:
QUOTE: "I am tired of talk that comes to nothing. It makes my heart sick when I remember all the good words and all the broken promises. There has been too much talking by men who had no right to talk. It does not require many words to speak the truth." (Chief Joseph, 1830-1904, Nez Perce)
EARLY TREATY TIMELINE
(Note: After 1970, the term 'treaty' was replaced with 'Agreement')
|Crown signs two treaties with the Huron/Wyandot and Seneca Nations for use of the portage at Niagara (usually referred to as the Niagara Treaty).|
|1784||Haldimond Purchase: approximately three million acres on the Niagara Peninsula, is obtained from the Native peoples of the area. Notably, this cession (usually referred to as the Haldimond Grant) provides the land base for the Six Nations of the Grand River Reserve.|
|1764-1806||Crown acquires shoreline lands along the upper St. Lawrence and lower Great Lakes, from Pointe au Baudette to Lake St. Clair.|
|1815-1827||Crown’s land holdings increases with the purchase of seven million acres, cutting a wide swath from the Ottawa River to the eastern shores of Georgian Bay. This includes six major land cession agreements with Native Nations after the War of 1812: the Rice Lake Purchase of 1818; the Rideau Purchase of 1825; the Lake Simcoe-Nottawasaga Purchase of 1818; the Ajetance Purchase of 1818; the Long-Woods Purchase of 1827; and the Huron Tract Purchase of 1827.|
|1836||Sir Frances Bond Head negotiates a deal with the Ojibwa for twenty three thousand islands of the Manitoulin Island chain, as well as with the Saugeen for one and a half million acres on the Bruce Peninsula. In either of these arrangements, no provision was made for the payments, though the Bond Head Treaties stipulated that the Crown would protect the lands for Native peoples.|
|1850||Robinson Huron and Robinson Superior treaties. These surrender aboriginal title to a vast territory extending from Lake Huron northward to Rupert's Land. Native signatories receive a 2,000 pound cash settlements as well as annuity payments. They were given the right to hunt and fish on all lands except for those occupied by individuals or companies under permit of the province.|
|The Robinson treaties establish a benchmark for modern treaty-making by including such rights and fishing and hunting, as well some form of cash annuity. Also, the establishment of reserves, promises from the Government to sell reserve lands and mineral rights only insofar as they were of benefit to the Native people became vogue. The government also promised to make the monies received for mineral rights retroactive.|
|1854||British Columbia: fourteen small treaties on Vancouver Island negotiated by Hudson’s Bay Factor, James Douglas.|
|1862||William McDougall successfully renegotiates with the Ojibwa of Manitoulin Island for 600,000 acres (usually referred to as the Manitoulin Island Cessions). Sufficient numbers of Ojibwe did not settle on the lands under the 1836 agreement. Further negotiations resulted in over half a million acres being opened up to European settlers.|
|August 3, 1871||Treaty 1: Chippewa, Swampy Cree and others in southern Manitoba (Portage la Prairie and Winnipeg).|
August 21, 1871
|Treaty 2: "Manitoba Post Treaty" is signed with the Chippewa and others. The land ceded involves central Manitoba, southeastern Saskatchewan and southwestern Manitoba.|
|October 3, 1873||Treaty 3: "Northwest Angle Treaty", was signed on October 3, 1873 with the Saulteaux, Ojibway and other Indians, and involved the extreme southwest of Ontario lying west of the Great Lakes and a small portion of southeastern Manitoba. The area ceded totalled 55,000 square miles.|
|September 15, 1874||Treaty 4: "Qu'Appelle Treaty, was signed on September 15, 1874 with Cree, Saulteaux and others, mainly in southern Saskatchewan. The area ceded was 74,600 square miles.|
|September 24, 1875||Treaty 5: "Winnipeg Treaty" was signed on September 24, 1875 with Saulteaux and Swampy Cree tribes and others. It involved northern Manitoba and part of Ontario north of Treaty 3 lands. The area ceded was 100,000 square miles.|
|August 23, 1876 and September 9, 1876||Treaty 6: Plain and Wood Cree. It was signed on two dates because of Cree Chief, Big Bear’s initial refusal to sell of Cree ancestral land. It involved central Alberta and central Saskatchewan. The area ceded was 121,000 square miles.|
|September 22, 1877||Treaty 7: Blackfoot, Blood, Peigan, Sarcee, Stony and others in southern Alberta on September 22, 1977. The area ceded totalled 42,900 square miles.|
|June 21, 1899||Treaty 8: Cree, Beaver, Chipewayan and others. It involved northern Alberta, the Northwest Territories south of Great Slave Lake, and northeastern British Columbia. The area ceded was 324,900 square miles.|
|June 12, 1905||Treaty 9: Crown Dominion of Canada, the Crown Province of Ontario, and Ojibway, Cree and others. It involved that part of Ontario draining into Hudson Bay. It was paid by Ontario. The area ceded was 90,000 square miles.|
|August 28, 1906||Treaty 10: Chipewyan, Cree and others in northern Saskatchewan on August 28, 1906. The area ceded was 85,800 square miles.|
|June 27, 1921||Treaty 11: Slave, Dogrib, Loucheux, Hare and other Indians. It involved the NWT north of Great Slave Lake. The area ceded was 372,000 square miles.|
|1923||Williams Treaties which extinguish Native title to the last un-surrendered lands in southern Ontario.|
Here endeth the treaty-making process in Canada!! Onto Agreements
Generally speaking non-Natives cannot live on, or otherwise use or occupy, Native reserve lands unless:
THE PRICE OF PROGRESS
By the mid 19th century ,the original purpose of treaty-making, that being friendship and peace, and the so-called civilization of the savages was almost completely subordinated to the insatiable greed for power and expansion. Land acquisition was the means by which power would be achieved. First item on the agenda after 1867 (Confederation) was to open the west, thereby creating a federated state from sea to sea. Almost immediately the grand plan of a national railway was underway; European immigration to supply a badly needed workforce boomed; an agricultural economy was created in the west, which required land.
Native people were impediments to this economic and geographical progress juggernaut. They had to be moved out of the way and quickly. However, Native people still held title to most of the land. That problem was solved by an 1870 British-Order-In-Council which brings the Northwest Territories and Rupert’s Land into Confederation, thereby placing it under the jurisdiction of the Royal Proclamation.
... "upon the transference of the territories in question to the Canadian Government, the claims of the Indian tribes to compensation for lands required for purpose of settlement will be considered and settled in conformity with the equitable principles which have uniformly governed the British Crown in its dealings with the aborigines."
QUOTE: "The Indian is of the soil, whether it be the region of forests, plains, pueblos, or mesas. He fits into the landscape, for the hand that fashioned the continent also fashioned the man for his surroundings. He once grew as naturally as the wild sunflowers, he belongs just as the buffalo belonged...."
Bear, Oglala Sioux
FEDERAL LAND CLAIMS POLICY - MODERN TIMES
Political, legal/judicial and constitutionally negotiated agreements between the federal government (sometimes involving the provinces and territories), and First Nations people that usually cover rights to land, fishing, hunting and logging access, compensation, areas of jurisdiction, governance, co-management regimes, resource royalty revenue arrangements, etc. The federal government recognizes two broad classes of claims:
A: COMPREHENSIVE LAND CLAIMS:
There is wide scope in this category because claim is based on the recognition that there are continuing Indigenous rights to land and natural resources. Such claims arise in those parts of Canada where Indigenous Title has not been dealt with by agreement (treaty) and other legal means. The objectives are:
Lawsuit to Watch for: March, 2002, Haida of British Columbia launched a lawsuit with the B.C. Supreme Court for hereditary title/ownership of the Queen Charlotte Islands (Haida G'wai). The suit is the first of its kind because it includes surrounding waters and offshore rights (oil and gas reserves). It will be the first Indigenous title lawsuit since the 1997 landmark Supreme Court of Canada decision in Delgamuukw vs the Queen.
Completed Negotiations: James Bay & Northern Quebec (1975); Northeastern Quebec (1978); Inuvialuit (1984); Gwich'in (1992); Nunuvut (1993); Council for Yukon Indians (4 settled in 1993); Sahtu (19i2); Nishga'a (2000).
Under Negotiation: Council for Yukon Indians; Dogrib; Conseil de Atikanekw des Montagnais; Labrador Inuit Association; Innu; 30+ in British Columbia. Mississauga of the New Credit in Southern Ontario.
B: SPECIFIC LAND CLAIMS
These are grievances that First Nations may have relating to the administration of First Nations lands and other assets under the Indian Act (includes broken promises. Two centuries ago, Indigenous peoples controlled most of the world’s ecosystems; their territory has shrunk to between 12% and 19% of the Earth’s land surface. Their objectives are to:
SOME INTERESTING HISTORICAL MOMENTS
|1625 - One of the pioneering natural rights theorists of the 16th and early 17th centuries, Dutchman, Hugo Grotius in his treatise, On the Law of War and Peace concludes that unoccupied lands in America can legally be claimed by the nation that "first discovers" and takes possession of them. This does NOT include Indigenous occupation.|
|1650 - Franciscus de Victoria, a Spanish Dominican in his Roman civil law treatise, states: "The Indians are the true owners of America because they have occupied these lands from time immemorial."|
|1670 - Charles II of England grants to his cousin Prince Rupert an area around Hudson’s Bay, known as Rupert’s land, and forms the Hudson’s Bay Co. Prince Rupert never in his life sets foot in Canada .|
|1672 - Samuel von Pufendorf, a Lutheran clergyman states that the mere fact of knowing of the existence of something is not sufficient in and of itself to establish title of ownership. "Discovery accords nothing more than the right to potential appropriation, the erection of crosses, the establishment of the arms of the king....Native rights are inalienable."|
|1755 - Swiss Jurist, Emmerich de Vattel, in a civil law treatise bases title and right not on ancestral occupation but on its use, which constitutes ultimate justification for its use. He defines the right of colonization in the Americas by the fact that Native peoples occupied immense tracts of land ‘nomadically’ and, therefore, do not have the right of ownership. The particular needs of the Europeans through their sustained use, legitimizes their claims subsequent right of ownership. "The savages should be kept within narrow bounds."|
|1850-1854 - James Douglas, Chief Factor of the Hudson’s Bay Company and Governor of the colony negotiates agreements with individual bands, extinguishes Native title to the lands around Victoria, Nanaimo and Fort Rupert. In return for surrendering land which becomes "the Entire property of the White people for ever", the Indians are confirmed in possession of their village sites and fields, assured that they will be "at liberty to hunt over the unoccupied lands, and to carry on fishing as normal." They are also given small payments. Victoria is obtained for 371 blankets. Shortage of funds keeps Douglas from conducting further agreements, and most of British Columbia remains non-treaty.|
1871-1921 - Eleven so-called numbered treaties decided, in which Indigenous people in effect give up over three-quarters of Canada's land mass.
1876 - Indian reserves (‘reservation’ is American term) are set aside according to the Indian Act. Title to the land is held by the Crown. A band cannot sell or otherwise dispose of reserve land without first ceding it to the federal government.
1888 - Landmark St. Catharines Milling case is decided by Judicial Committee of the Privy Council in England. The Privy Council rules against this assertion of federal jurisdiction over treaty lands citing title which is ascribed in the Royal Proclamation. As a result, Ottawa needs provincial consent to establish reserves under Treaty, and more importantly, provincial concurrence to sell reserve lands if they are surrendered.
|1927 - A special Joint Committee of the Senate and House of Commons holds that Native people in B.C. have no claim to lands in B.C.|
1927 - The Indian Act is amended to prohibit Native people from using Band funds to launch land claims actions.
1971 - Quebec decides to forge ahead with the James Bay hydroelectric project. It forces the Cree of James Bay and the Inuit of Nunavik (northern Quebec) to go to court to stop the project until Indigenous land claims are settled. They are successful in getting a temporary injunction, which forces the provincial government back to the negotiating table.
1973 - British Columbia's landmark Calder Case (named after Nishg’a Leader, Frank Calder) in 1973 introduces the terms "land claims" and "Aboriginal rights" into the everyday language of Canadians. The case, is brought to court by Chief Calder of the Nishg’a Indians of northwestern British Columbia, and asks that existence of "Aboriginal title" claimed over lands historically occupied by the Nishg’a be reviewed.
In a split decision, the Supreme Court of British Columbia acknowledges the existence of Aboriginal rights although they do not agree that the title continues to exist in British Columbia. Title is based on the occupation of lands. The territorial rights of Native peoples exists not only under the Royal Proclamation of 1763, but also because of "Indian title" from ancestral occupancy of these lands.
|1973 - The Office of Native Claims is opened in Ottawa to receive proposals for negotiation. Two types: Comprehensive (based on areas where Aboriginal title has never been extinguished through treaty or other legal process); Specific (involve claims for fulfilment of treaty provisions and promises or relate to the management of Indian lands and assets under the Indian Act).|
|1973 - The first modern land agreememt in Canada, involving the province of Quebec, the federal Government, the James Bay Cree, and the Inuit of Nunavik, is signed. The terms of the treaty became the starting point for all succeeding negotiations across Canada. The word 'Treaty' is replaced with 'Agreement'.|
|1977 - James Bay Land Claims Agreement becomes law. Cree and Inuit in northern Quebec are given $235 million over twenty years, community ownership of small areas of land, and exclusive hunting, fishing and trapping rights over larger areas. In return they surrender Indigenous rights to about 60% of Quebec territory making way for the James Bay Hydro project. It is now viewed as a poor agreement as Native interests have largely been ignored by Ottawa.|
|1986 - Sechelt Indian Band Self-Government Act in which the Sechelt receive title to their reserve lands, and the right to draft their own constitution and laws. They are no longer bound by the Indian Act.|
barricade is erected by Mohawks from the Kanestake settlement. Its aim
is to halt expansion of a golf course on land the Mohawks claim as their
July 11 - OKA crisis begins in earnest. The 78-day standoff between armed Mohawks of Kanesatake and Kahnawake, and thousands of police officers and solders. At 8.45 a.m. on July 11, a gunfight erupts, killing police officer, Corporal Marcel Lemay. No one knows who fires the first shot. The Canadian Government repeatedly tries to quash media coverage. Oka triggers nationwide acts of civil disobedience, including: Southern Alberta’s Oldman River, RCMP officers run for cover after being fired upon by unseen assailants. Peigan Natives protesting construction of a dam are blamed; Northern Ontario: Pays Plat band members barricade the CP Rail mainline in a land settlement dispute; In B.C., police drag Stl’atl’mx Nations members from railway tracks to end one of many blockades erected during the summer of 1990.
|1990 - Sparrow Decision. The Supreme Court of Canada issues a landmark ruling which states that Aboriginal rights cannot be extinguished. It re-defines Indigenous peoples’ right to fish for food ; social and ceremonial purposes. The ruling takes priority over all other uses of the fishery by other individuals, subject to certain overriding considerations such as conservation of the resource. It concludes that provincial legislation cannot limit Native ancestral rights even where the public interest is involved. The Supreme Court also sets out the necessity of consulting with Aboriginal groups when their fishing rights are affected.|
|1991 - In Delgamuukw, the British Columbia Supreme Court dismisses the Gitskan-Wet’suwet’land claim. Chief Justice Allan McEachern rules that two tribal groups in northern B.C. have no claim to ownership of the land or jurisdiction over the territory in which they live. They do, however, have "unextinguished, non-exclusive aboriginal rights, other than right of ownership" to much of their traditional territory including Crown land.|
|1997 - In the Delgamuukw suit (British Columbia), the Supreme Court orders a new trial. Treaty negotiations are thrown into turmoil because the Court broadens the definition of Aboriginal Rights by giving greater weight to oral histories previously dismissed by lower courts. It also extends the principle of indigenous title to include ownership of land.|
|1999 - Nunavut (means "our land" in Inuit) becomes Canada’s newest territory in the eastern Arctic. There are two different Acts: the Nunavut Act and the Nunavut Land Claims Agreement Act. The Nunavut Act is for the establishment of a territory and the provision of a government. The Nunavut Land Claims Agreement Act means the land claims agreement between the Inuit and Canada. Iqaluit (formerly known as Frobisher Bay) becomes its capital.|
|1999 - The Federal Government calculates the cost of satisfying all Indigenous land claims at $200-billion dollars.|
|2000 - Bill C-9 - Nisga’a Land Agreement is enacted. In settling their claim the Nishg’a settle for approximately 1/10th of their territory (1,992 square kilometers in lower Mass Valley). Nishg’a continue to be Indigenous people under the Constitution Act of 1982; Lands owned by Nishg’a will no longer be reserve lands under Indian Act (tax free status extinguished).|
QUOTE: "The earth is the mother of all people, and all the people should have equal rights upon it. You might as well expect the rivers to run backward as that any man who was born a free man should be contented when penned up and denied liberty to go where he pleases." Chief Joseph, 1830-1904, Niimipuu
Photo: Thunderbird in the role of, "In Who Lise" in Thunder Rolling In The Mountains. The story of the flight of the Niimipuu, left by Chief Joseph and his brother, Oolikut.
ENVIRONMENT & INDIGENOUS RIGHTS
EARTH BELONGS TO NO ONE -
QUOTE: "Perhaps you think The Creator sent you here to dispose of us as you see fit. If I thought you were sent by The Creator, I might be induced to think you had a right to dispose of me. Do not misunderstand me, but understand fully with reference to my affection for the land. I never said the land was mine to do with as I choose. The one who has a right to dispose of it is the one who has created it. I claim a right to live on my land and accord you the privilege to return to yours. Brother, we have listened to your talk coming from the father in Washington, and my people have called upon me to reply to you. And in the winds which pass through these aged pines we hear the moaning of their departed ghosts. And if the voices of our people could have been heard, that act would never have been done. But alas, though they stood around they could neither be seen nor heard. Their tears fell like drops of rain. I hear my voice in the depths of the forest, but no answering voice comes back to me. All is silent around me. My words must therefore be few. I can say no more. He is silent, for he has nothing to answer when the sun goes down."
WHEN LAND CLAIMS AND TREATY RIGHTS COLLIDE
"Land claims" and "treaty rights" present conflicts when developing a wilderness strategy for Canada. Whereas, Specific claims deal with unfulfilled treaty promises or government mis-administration, Comprehensive land claims cover very large land areas; for example, the first was the 1975 James Bay and Northern Quebec Agreement.
"Why [Native people] generally oppose "allocations for nature", Native land claims, are often about the "harvest" of wildlife and "economic" opportunities. There seems to be little regard for sanctuaries - or what the Land Claims Work Group of the Federation Of Ontario Naturalists called "allocations for nature." (D. Orton)
THE TRAVESTY OF GREED & ECONOMIC BOTTOM LINE CAUSES THE TREE OF LIFE TO WEEP
Economic greed by non-Natives is the principle contributor to the near extinction of both the Pacific and Atlantic fisheries. It will take decades, if ever, to recoup the terrible loss.
Rampant clear-cutting of forests and woodlands destroys eco-systems, pollutes the air and displaces human communities, in particular Indigenous societies.
It is common knowledge that the wholesale destruction of rain forests, the loss of animal species at the rate of fifty a day and devastation of other eco-systems, destroys the fabric of human life. We are, in other words, committing mass suicide. David Orton says, "From an eco-centric perspective, we need total land reform in Canada and throughout the world, so that land, water, and air are seen as the common inheritance of all living beings." If we view the environment as our inheritance, it will create value in the minds of all of us who rely on its health so that we remain healthy.
The problem we are faced with is that there is no equality in our inheritance, and a large group of avaricious, global family members want more than their share!
ASSERTION OF NATIVE RIGHTS
Working against allocations for nature are the following factors:
For all of these reasons, in many parks indigenous rights to hunt, fish and trap as part of land claims are being pursued, and wilderness or wildlife sanctuaries closed to human "use" are being opposed. Governments at the federal and provincial levels seem increasingly willing to compromise the ecological integrity of the poorly defended parks system in Canada for native land claims. This is politically easier than changing or challenging the well-defended "allocations" of non-park crown land, which have been committed to the timber industry on a long-term basis. Generally, aboriginal peoples in Canada are asserting their "rights" to hunt, trap, and fish year-round, as in "traditional" times, but using modern technologies of destruction and transportation, and in a country now with a population of around 30 million people." (D. Orton)
INTENT OF INDIGENOUS SOCIETIES TO ASSERT THEIR RIGHTS
The general intent by Indigenous people to assert their trapping, hunting and fishing rights is so that personal and community use, as part of a traditional lifestyle is satisfied. By definition, following a traditional lifestyle, carries with it the awareness of the importance and need to follow responsible conservation and ecological practices. "Take only what you need." the Ancient Ones instructed. "Leave the rest for your children and your children's children so that Mother Earth's heartbeat will remain strong."
Indigenous societies inherently understand, and have tried to teach the government and other decision-makers that controlled harvesting of fur-bearing animals, for example, not only strengthens the animal populations, but also ensures their survival. "I ask you now Sister, I ask you now, Brother, who speaks for wolf?"
LAST WORD TO